Hypocrisy, ignorance and the #HummingbirdGate controversy

The allegation that Euodia Roets is a hypocrite for misappropriating RW Scott’s photograph as the basis for the sketch she contends Woolworths, in turn, misappropriated ignores a few important issues. First, was Ms Roets’ sketch actually an infringement of RW Scott’s photograph? Secondly, Woolworths’ failure to comply with the Creative Commons license Wikipedia applies to its content could have profound implications for Woolworths. Lastly, this debate highlights a remarkable degree of ignorance of the law in the digital marketing and creative industries.

Did Euodia Roets Infringe Copyright With Her Design?

One of the allegations doing the rounds in the midst of this controversy is that Ms Roets is a hypocrite because she has complained about Woolworths misappropriating her idea and it subsequently turned out that she draw her inspiration from RW Scott’s image. I’ve dealt with this in more detail in my post titled “A Few More Thoughts About the @Woolworths_SA #HummingbirdGate Controversy”.

The hypocrisy allegation misses the bigger point. It assumes a degree of knowledge on Ms Roets’ part that, by apparently relying on RW Scott’s photograph as the inspiration for her sketch, she was infringing his copyright in his work. As I pointed out in my previous post, to the extent Ms Roets lacked permission to create a derivative of RW Scott’s work, her sketch (which is likely still protected by copyright) probably infringes RW Scott’s copyright. RW Scott’s son, Greg Scott, commented on htxt’s blog post about this story:

My dad, R. W. Scott was the photographer of the original image. He gave me the rights to the digital image. years ago, around 1990, perhaps. I scanned his slide, edited out an overly complex background, and posted it on GregScott.Com and have given rights to use the photo for reference to many artists, provided they they don’t sell a “direct copy”, that is, that they should make creative interpretations of the image. From my perspective, I’m assuming that both works of art are licensed derivative works,and that Woolworth’s has compared two similar images and chosen one work over the other. Clearly two works derived from the same image can be legitimate, and yet have a strong resemblance.

I don’t see any wrongdoing here, except perhaps for making unwarranted accusations without adequate facts. It does bother me that people seem to assume that big business (Woolworths) is in the wrong, when they bought and paid for the image from the artist. If there are license/copyright issues here, I only see a potential concern with the Wiki text.

This would seem to address the allegation that Ms Roets’ infringed RW Scott’s copyright by creating her derivative work, namely her sketch, and undermines the allegation that Ms Roets is a hypocrite.

The Wikipedia License Issue

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

  • correctly attributing the Wikipedia article the text was drawn from; and, more significantly,
  • licensing the Woolworths design "under the same, similar or a compatible license”.

This means that the Woolworths cushion design should be licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported license. This license would permit anyone to share the design freely for personal use and even commercialise the design provided any versions of the design (including derivatives) are similarly licensed under this license (or a compatible one which would likely the less restrictive Creative Commons Attribution 3.0 Unported license).

This would be a pretty interesting development because it would take Woolworths’ commercial design and release it into the Commons for re-use in ways I am sure Woolworths did not anticipate. It will be interesting to see whether this product remains on the shelf or is withdrawn to guard against this occurring and to remedy Woolworths’ failure to comply with the license terms.


As I mentioned above, the hypocrisy allegation implies knowledge of wrongdoing on your part while complaining about being wronged. I believe a more appropriate term may be “ignorance”[1] which is remarkably common and which has emerged fairly strongly in commentary about the story. The underlying issue here is that most people are ignorant of the legal risks they face, particularly creatives, and what the law actually says. In fairness, the law is complex and evolving. That said, there is a lot of poor quality information being disseminated as authoritative and is being relied upon to make bad decisions about content and a range of other issues.

I’ve noticed a high degree of ignorance of basic legal risks at larger agencies and smaller creative studios alike. I took a look at about half a dozen large and medium-sized agencies and only one had a set of terms and conditions and a privacy policy framework. The rest have a simple and redundant copyright notice with no further provisions dealing with data protection, content licensing, liability or a range of other themes a decent legal framework is designed to address. This is likely due more to ignorance of the risks these agencies face and what is required to reduce the likelihood of those risks manifesting than a conscious decision to leave the businesses exposed to unnecessary risk.

Given that larger agencies and studios leave themselves exposed to these risks, it is not surprising that small agencies and freelancers are similarly ignorant of the risks they face, especially considering their budgetary constraints which tend to focus their attention on growing their businesses rather than delving into important, though expensive, legal frameworks.

As the saying goes, ignorance of the law is no defence although, in practice, not having many instances of agencies and design studios being sued for rights infringements which could be avoided with adequate legal frameworks leads the industry to complacency. Essentially, agency management doesn’t see the value in appropriate legal frameworks because none of the other agencies have been sued yet. Call it an ostrich strategy or a diabetic strategy, it is troubling and it is going to lead an unfortunate agency to disaster one day.

Returning to this story, perhaps Ms Roets’ critics should consider how prevalent ignorance of the law is in this industry and how many of them have taken the time to acquaint themselves with the facts and accurate representations of the law which governs their activities? It is practically an epidemic.

  1. I haven’t communicated with Ms Roets and don’t have any specific insight into her awareness of the copyright issues at all.  ↩

A Few More Thoughts About the @Woolworths_SA #HummingbirdGate Controversy

I thought I’d explore some of the legal themes that have emerged from this #HummingbirdGate story even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. Two major legal themes are copyright infringement and unlawful competition.

This last weekend has been an interesting one. The Twitter community seems to be convinced that Euodia Roets was ripped off by an unscrupulous Woolworths despite numerous statements and interviews by Woolworths representatives which have denied this and have pointed to a process which was concluded months before entering into discussions with her and which led to the product range Ms Roets contended was derived from her ideas.

What We Have Learned So Far

More information about this controversy has emerged in the last few days. Here are some of the things we have learned:

  1. Woolworths embarked on a process prior to entering into discussions with Ms Roets and signed off on their designs in November 2012;
  2. Woolworths representatives met with Ms Roets in early 2013 and even though Ms Roets gave Woolworths’ representative a sample with her hummingbird image, it probably would not have influenced Woolworths’ production process;
  3. Ms Roets’ hummingbird is very similar to a work produced by photographer, RW Scott in the late 1990s.

I thought I’d explore some of the legal themes even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. The recording below is a summary of the controversy and an outline of what I see as two major legal themes: copyright infringement and unlawful competition.

Before you read further, you should also listen to Jon Robbie’s interview with Woolworths’ CEO this morning:

Copyright Infringement

Many commentators have highlighted the copyright aspect of the controversy. Ms Roets highlights this in her blog post when she compares her drawing and the scatter cushion she came across in Woolworths (I included both images in my previous post). At some point someone pointed out that Ms Roets’ design looks remarkably like a photograph taken by RW Scott in the late 1990s and they are remarkably similar. This is RW Scott’s image titled “Female Ruby Throated Hummingbird”:

It is a beautiful image, as is Ms Roets’ version. If Ms Roets based her image on RW Scott’s image, her image would likely be classified as a derivative work. Assuming Ms Roets’ image is the result of sufficiently creative work on her part, it could also benefit from copyright protection despite the risk of her derivative work also infringing RW Scott’s work. Whether Ms Roets’ hummingbird infringed RW Scott’s copyright would depend on whether she had permission to use it as the basis for her work (assuming she used his work as the inspiration for hers). If she didn’t have permission (bearing in mind she was selling her hummingbird image, she probably can’t take advantage of exemptions to copyright infringement to escape an infringement claim), whoever owns the rights in RW Scott’s work could probably insist that she stop selling hers. Flowing from this, if Ms Roets copied RW Scott’s work without permission and if Woolworths copied her work without ensuring it had permission, then both Ms Roets’ and Woolworths’ works would infringe RW Scott’s. Again, making a number of assumptions here.

Interestingly, Woolworths said, in its statement, that it commissioned its version of the hummingbird from an artist in Durban in 2012. If that artist derived his or her work from RW Scott’s photograph and did so without permission, that would place Woolworths in a difficult position[1].

Unlawful Competition

Much of the commentary conflated copyright infringement with what people seemed most upset with: an unlawful competition angle. If Woolworths stole Ms Roets’ idea, that would probably fall under a class of unlawful competition referred to as a misappropriation of a competitor’s performance. In this case that could be the case if Woolworths used Ms Roets’ idea for a cushion bearing her hummingbird design. Given that she was selling her cushion and Woolworths intended selling its version, she would clearly be a competitor (even if not a particularly threatening one) and if Woolworths hadn’t come up with its own idea independently, using her idea to subsequently produce its own range could be a form of unlawful competition.

For this to apply, Woolworths would essentially have had to have copied the product of Ms Roets’ efforts without much additional effort of its own. For various reasons this doesn’t seem to have occurred but it is certainly an interesting, if hypothetical, aspect of this controversy.

Important Take-away

Something Woolworths’ representatives pointed to which is crucial (and will be increasingly important as more collaborative business models evolve) was how it documented every step of its production process and can point to specific dates and phases of its process of sourcing, developing and ultimately taking the idea to production. This sort of pedantic and legally motivated process isn’t very exciting and can slow a creative process down but it is in times like these that you would be very happy you took your lawyer’s advice to so this. I suspect the member of Woolworths’ legal team who insisted on this documentation process is the object of much gratitude and appreciation right now.

  1. This is why it is essential to include warranties and indemnities about copyright ownership in contracts with external providers. Those sorts of clauses are basically guarantees by the providers that they have sufficient rights to pass along to their client and will take responsibility if the client is later sued for copyright infringement.  ↩

The @Woolworths_SA hummingbird: a parable

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together[1]. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

Euodia shared many of her ideas and artworks with Woolworth including a painting of a hummingbird she was selling in her store. One of the ideas they discussed was a pillow with her hummingbird printed on it. That would surely be a treat!

Sadly, Woolworth decided against continuing with Euodia and he sent her a note a few months later letting her know. She was disappointed and went on her way. A short while later, she happened to come across a store selling Woolworth’s goods and noticed a pillow with a hummingbird on it that looked remarkably like hers. She was shocked! The pillow size looked about the same as the one she discussed with Woolworth and he even seemed to take words about hummingbirds from the legendary Book of Wiki and used it as a background on the pillow and there was no mention of his source at all[2]. Shameful!

She has heard stories about Woolworth doing something like this to other artisans in the land, including a young fellow called Frankie who came up with an idea for some old-style cool drinks which some locals seem to favour. She was horrified to discover that she seemed to be next in line. She felt compelled to share her story and published her sad tale in her newsletter. Soon, it seemed even the birds were twittering about it. Everyone was shocked.

When Woolworth heard the story from a number of little birdies, he was dismayed and published a notice of his own. He said he had been talking to another talented artist in a coastal town some time ago about a similar concept and didn’t steal Euodia’s idea. It was all a bit misunderstanding and he had sent many messages to Euodia in an effort to meet with her and sort this whole thing out.

The people weren’t convinced. They heard about poor Frankie and were outraged that Woolworth had stooped to this level. They quickly came together and decided to petition Woolworth to stop taking advantage of local artisans.

A young writer read a story in a local paper and gave this all some thought. He hadn’t worked with Woolworth before but something about the story and what everyone was saying about Woolworth seemed to miss a possible explanation. He decided to investigate whether Woolworth really did pull the wool over everyone’s eyes or whether something else was afoot.

In the meantime, some intrepid journalists discovered that Euodia’s hummingbird may not have been completely original work either. This just fuelled our young writer’s curiosity so he set off for his local thinking spot under a shady tree and conducted a thought experiment.

Certainly, he thought, Woolworth could be the devious and unprincipled trader many accused him of being and if he had stolen Euodia’s idea like he seemed to have taken Frankie’s, he deserved the scorn he was receiving. In addition, given how closely other traders listen to messages carried by birds, Woolworth would almost certainly discover that a black reputation could have dire consequences for his value on local markets.

Perhaps, he thought further, there was another explanation. He had dabbled in laws and had noticed that most talented and persuasive business people like Woolworth tended not to consult with their lawyers. Their business was dynamic, exciting and full of potential and lawyers just seem to suck the light and colour out of the room when they speak. Perhaps Woolworth didn’t consult with his lawyers in their dungeons when he came up with his plan to work with Euodia.

Or, our young thinker thought, Woolworth did speak to his lawyers and they gave him a deed or some sort for Euodia to sign and which gave him permission to use her art in some form or another? She didn’t mention anything about that but it has been known to happen[3].

Exploring his first hypothesis a little further, our writer found himself wondering whether Woolworth, mindful of the Frankie story (and other similar stories), shouldn’t have adopted a different approach. Imagine Woolworth approached Euodia to contribute to his new artisan range not merely as a muse or supplier but as a creative partner of sorts. The world is a competitive place and you can’t help but hear stories about young creative people like Euodia outdoing established business people like Woolworth. Certainly, Woolworth’s products seem to bear that out. He certainly seemed to believe that Frankie was on to something great when he styled his drinks after Frankie’s. Similarly, Woolworth seemed to draw considerable inspiration from his discussions with Euodia in producing his hummingbird cushions.

Perhaps the problem here is that Woolworth didn’t challenge the usual relationship between traders like himself and young artisans like Euodia and come up with something that could clearly and transparently have benefitted both of them. What if he approached Euodia to publicly collaborate with him to produce the hummingbird product range using her designs[4] in his aptly named “Artisan” range. She would work with him to create wonderful designs for beautiful products and they would share the credit for the work. Woolworth could use his Artisan range to draw attention to the wonderful local talent Euodia and others represent and perhaps even have them sign their designs. The message he would send would be clear: Woolworth appreciates and supports wonderful, creative and, importantly, local talent and perhaps even goes so far as to create a platform for a select few to represent and uplift their communities.

The lawyers, if they are imaginative enough[5], could construct deeds to support this community upliftment initiative and enable Woolworth to go far further than his competitors in sustainably creating products that bring his customers even more joy. Most people know Woolworth is passionate about supporting schools and communities. Wouldn’t this be a remarkable way to do even more to support them and create opportunities for rich and diverse creativity to fuel it all?

Our writer stood up from his shady spot and ambled back to his small office. He smiled to himself at the thought of a progressive Woolworth. Imagine what he could accomplish. The people would be even more inspired to buy his goods because they would know they would be supporting local, amazing and creative talent.

  1. Disclaimer: This is partly fiction and mostly derived from reports about the so-called #HummingGate controversy which erupted online recently about Woolworths’ dealings with Euodia Roets. It is not based on any actual insights into anyone’s or any company’s methodologies and business practices (because I don’t have any actual insights). This is essentially a “what if?” story.  ↩

  2. As all in the land know, text in the Book of Wiki is available to all under a Creative Commons Attribution-ShareAlike 3.0 Unported license which allows many uses but also imposes attribution and license annotation requirements.  ↩

  3. Well, if this was the case, what Woolworth could do with Euodia’s work would depend very much on the wording of that document and he could have the right to do what he did after all, assuming he did what he stands accused of doing.  ↩

  4. Of course this assumes that the hummingbird in question was, in fact her design, and she didn’t draw direct inspiration from another artist. That would complicate matters considerably and our writer could just imagine groups of lawyers rubbing their grubby hands together in glee at the prospect of that.  ↩

  5. A big if but there are some pretty innovative lawyers out there these days.  ↩